Executive Office for Immigration Review; Adjustment of Status to That of Person Admitted for Permanent Residence

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245

[EOIR No. 119 I; A.G. ORDER No. 2120-97]

RIN 1125-AA20

Executive Office for Immigration Review; Adjustment of Status to

That of Person Admitted for Permanent Residence

AGENCY: Executive Office for Immigration Review, Immigration and

Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the date by which aliens must file

and pay for their applications for adjustment of status pursuant to

section 245(i) of the Immigration and Nationality act. Such

applications are adjudicated by the Executive Office for Immigration

Review, including the Board of Immigration Appeals and the Immigration

Courts, or the Immigration and Naturalization Service. This rule also

clarifies the procedure for paying for such adjustment applications

when filed in conjunction with motions to reopen or reconsider.

DATES: Effective Date: This rule is effective October 23, 1997.

Comment Date: Written comments must be received on or before

December 22, 1997.

ADDRESSES: Please submit written comments to Margaret M. Philbin,

General Counsel, Executive Office for Immigration Review, 5107 Leesburg

Pike, Suite 2400, Falls Church, Virginia, 22041.

FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel,

Executive Office for Immigration Review, 5107 Leesburg Pike, Suite

2400,

[[Page 55153]]

Falls Church, Virginia, 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION: On August 26, 1994, Congress enacted the

Department of Commerce, Justice, State, and the Judiciary and Related

agencies Appropriations Act of 1995, Pub. L. 103-317. Section 506(b) of

this law added a new section 245(i) to the Immigration and Nationality

Act (the Act) which allows certain persons already in the United States

to adjust status, despite the provisions of section 245 (a) and (c) of

the Act, upon payment of a fee in addition to the base filing fee for

an adjustment of status application.

On July 23, 1997, the Immigration and Naturalization Service

(Service) published an interim rule with request for comments (62 FR

39417) concerning adjustment of status applications filed pursuant to

section 245(i) of the Act. The supplementary information to the interim

rule reiterated that the provisions of section 245(i) apply only to

applications filed on or after October 1, 1994, and before October 1,

1997. See section 506(c) of Pub. L. 103-317. However, timely filed

applications may still be adjudicated after September 30, 1997. On

September 30, 1997, the Executive Office for Immigration Review

published a similar rule (62 FR 50999) that enabled the Executive

Office for Immigration Review to complete adjudication of timely filed

section 245(i) adjustment applications after September 30, 1997.

This program was due to terminate on October 1, 1997. However, on

September 30, 1997, Congress extended the program until October 23,

1997. This interim rule reflects that applications filed subsequent to

October 1, 1994, and prior to October 23, 1997 or any other such date

as Congress may determine in an extension of section 245(i) of the Act,

will be adjudicated to completion by an officer of the service or EOIR.

This interim rule makes it clear that the Service and EOIR may

consider a motion to reopen or reconsider an application for adjustment

of status on the basis of section 245(i) of the Act if the applicant

submitted a copy of the application for adjustment of status, a copy of

Supplement A to Form I-485, and any other required documentation on or

after October 1, 1994, and before October 23, 1997, or any other such

date as Congress may determine in an extension of section 245(i) of the

Act. However, in order to receive the benefit of a motion to reopen or

reconsider that has been granted, the applicant must have remitted to

the Immigration and Naturalization Service any additional sum required

by section 245(i) (the additional sum is currently $1,000) before

October 23, 1997, or any other such date as Congress may determine in

an extension of this provision. This procedure is different from the

procedures previously in effect for filing motions to reopen or

reconsider with EOIR and which continue to apply to all other motions

filed with EOIR. Those individuals who have properly filed motions to

reopen or reconsider in order to apply for adjustment of status under

section 245(i) but who have not yet paid the required fee, or those

individuals whose motions have been granted in the past but who have

not yet paid the required fee, must now pay that fee with the

Immigration and Naturalization Service before October 23, 1997 or any

other such date as Congress may determine in an extension of this

provision.

The implementation of this rule as an interim rule, with immediate

effect, and with provisions for post-promulgation public comment, is

based upon the ``good cause'' exceptions found at 5 U.S.C. 553b (B) and

(d)(3). Immediate implementation of this rule will ensure that all

applicants for adjustment of status under section 245(i) are aware of

the extended application period and the revised procedures for paying

the application fee when submitting a motion to reopen or reconsider.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Attorney General certifies

that this rule affects only those aliens who are applying to adjust

their status under section 245(i) of the Immigration and Nationality

Act. Therefore, this rule does not have a significant economic impact

on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

Executive Order 12866

The Attorney General has determined that this rule is not a

significant regulatory action under Executive Order No. 12866 and,

accordingly, this rule has not been reviewed by the Office of

Management and Budget.

Executive Order 12612

This rule has no federalism implications warranting the preparation

of a Federalism Assessment in accordance with Executive Order No.

12612.

Executive Order 12988, Civil Justice Reform

The rule meets the applicable standards provided in sections 3(a)

and 3(b)(2) of Executive Order No. 12988.

List of Subjects in 8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

Accordingly, part 245 of chapter I of title 8 of the Code of

Federal Regulations is amended as follows:

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR

PERMANENT RESIDENCE

1. The authority citation for part 245 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1255; 8 CFR part 2.

2. In Sec. 245.10, paragraphs (c), (d), and (f) are revised to read

as set forth below:

3. In Sec. 245.10, paragraph (e) is amended in the last sentence by

removing the reference to ``October 1, 1997'' and replacing it with

``October 23, 1997 or any other such date as Congress may determine in

an extension of section 245(i)''.

Sec. 245.10 Adjustment of status upon payment of additional sum under

Public Law 103-317.

* * * * *

(c) Application period. The Service or the Executive Office for

Immigration Review may approve an application for adjustment of status

pursuant to section 245(i) of the Act if such application was filed

either on or after October 1, 1994, and before October 23, 1997 or any

other such date as Congress may determine in an extension of section

245(i). If an alien attempts to file an adjustment of status

application under the provisions of section 245(i) outside

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of this time period, the Service will accept the application and base

filing fee, as set forth in Sec. 103.7(b)(1) of this chapter, return

the additional sum of $1,000 to the alien, and either the Service or

the Executive Office for Immigration Review will adjudicate the

application pursuant to section 245(a) of the Act. If the alien, in

such a case, is not eligible for adjustment of status, either the

Service will issue a written notice advising the alien of the denial of

the application for adjustment of status, or the Executive Office for

Immigration Review will deny the application for adjustment of status.

(d) Adjustment application filed on or after October 1, 1994, dated

before October 23, 1997 or any other such date as Congress may

determine in an extension of this provision, without Supplement A to

Form I-485 and additional sum. An adjustment of status applicant will

be allowed the opportunity to amend an adjustment of status application

filed in accordance with Sec. 103.2 of this chapter on or after October

1, 1994, and before October 23, 1997 or any other such date as Congress

may determine in an extension of section 245(i) of the Act, in order to

request consideration under the provisions of section 245(i), if it

appears that the alien is not otherwise ineligible for adjustment of

status. If the application for adjustment of status is pending before

the Service, the Service shall notify the applicant in writing of the

Service's intent to deny the adjustment of status application, and any

other requests for benefits that derive from the adjustment

application, unless Supplement A to Form I-485 and any required

additional sum is filed within 30 days of the date of the notice. If

the application for adjustment of status is pending before the

Executive Office for Immigration Review, the Executive Office for

Immigration Review will deny the application and permit the applicant

to file a motion to reopen in accordance with Secs. 3.2(c) and 3.23 of

this chapter along with proof of payment to the Immigration and

Naturalization Service of the additional sum within 30 days of the

denial.

* * * * *

(f) Completion of processing of pending applications. (1) An

application for adjustment of status filed on or after October 1, 1994,

and before October 23, 1997 or any other such date as Congress may

determine in an extension of section 245(i) of the Act, shall be

adjudicated to completion by an officer of the Service or by the

Executive Office for Immigration Review, regardless of whether the

final decision is made after the termination of this program. The

provisions of paragraph (d) of this section regarding amended

applications shall apply to all such applications. The Service or the

Executive Office for Immigration Review may consider a motion to open

or reconsider an application for adjustment of status on the basis of

section 245(i) if the applicant submitted a copy of the application for

adjustment of status, a copy of Supplement A to Form I-485, and any

other required documentation on or after October 1, 1994, and before

October 23, 1997 or any other such date as Congress may determine in an

extension of section 245(i). However, in order to receive the benefit

of a motion to reopen or reconsider that has been granted, the

applicant must have remitted to the Immigration and Naturalization

Service before October 23, 1997 or any other such date as Congress may

determine in an extension of section 245(i), any additional sum

required by section 245(i). Even if a motion to reopen or reconsider is

granted, failure to pay the additional sum to the Immigration and

Naturalization Service before October 23, 1997 or any other such date

as Congress may determine in an extension of 245(i) will result in the

ultimate denial of the application for adjustment of status.

(2) Any application for adjustment of status submitted pursuant to

section 245(i) and considered in deportation or removal proceedings

must be filed between October 1, 1994, and October 23, 1997 or any

other such date as Congress may determine in an extension of section

245(i).

* * * * *

Dated: October 18, 1997.

Janet Reno,

Attorney General.

[FR Doc. 97-28147 Filed 10-20-97; 4:16 pm]

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